COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73118 PETE SAUTO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION EDWARD E. NACHT : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION APRIL 16, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-307255 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEVEN M. WEISS (#0028984) LAW OFFICES OF STEVEN WEISS 1250 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Defendant-Appellee: FREDRIC E. KRAMER (#0012382) McNEAL, SCHICK, ARCHIBALD & BIRO CO., L.P.A. Suite 700, Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113 SPELLACY, J.: Plaintiff-appellant Pete Sauto ( appellant ) appeals from the trial court's denial of his motion for new trial. Appellant brought a personal injury action against defendant-appellee Edward -2- E. Nacht ( Nacht ) in which only proximate cause and damages were disputed. The jury returned a verdict in favor of Nacht. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL. Finding the appeal to lack merit, we affirm the judgment of the trial court. I. On September 16, 1995, appellant was stopped for a light at Coventry and Cedar Road. An automobile driven by Edward Nacht struck the car immediately behind appellant's 1991 Lincoln Town Car, causing that vehicle to impact with appellant's car. Appellant's automobile moved forward slightly due to the accident and sustained scratches to the rear bumper area. Appellant felt a sort of snatch in his neck. He hit the headrest and felt a funny jolt in his back. Appellant experienced back pain immediately following the accident. After the accident, appellant, Nacht, and the driver of the third car, Linda Lewelyn, went to the police station and filed a police report. Appellant testified he mentioned the pain in his back to Lewelyn and to the police but not to Nacht. Appellant did not go to the emergency room that day or seek any other medical treatment although he was experiencing some discomfort. Appellant decided to wait a day or two to see how he felt. Eventually, appellant contacted an attorney who recommended -3- that appellant see Dr. Bilfield, an orthopedic specialist. Dr. Bilfield saw appellant a total of four times. Dr. Bilfield prescribed medicine and recommended physical therapy. Appellant had two to four sessions with a physical therapist. At appellant's suggestion, appellant stopped seeing the physical therapist but continued to perform the exercises at home on a daily basis. Appellant testified he has a constant ache or pain in his back which at times can become very sharp. Appellant stated that the pain has not lessened or gone away since the accident. Appellant also experiences periodic neck pain and has a shooting pain in his right leg. Because of the pain, appellant has had to curtail many of his activities such as working in his yard, helping lift or carry objects in his home, driving, and going for walks. Appellant now has an uneven gait. Prior to the accident appellant never had any symptoms of back problems. Under cross-examination, appellant admitted that he continued driving for a year following the accident in question until he developed lung cancer. On his last visit with Dr. Bilfield, appellant told the doctor he had less pain in his neck, low-back, and right hip. Appellant informed the doctor that he was significantly but not completely recovered and that there were times his back felt pretty good. Dr. Bilfield testified by way of a video deposition. He verified that appellant had four office visits between September 21, 1995 and July 17, 1996. Appellant's first visit occurred approximately five days after the accident. Appellant primarily -4- complained of neck and lower back pain. X-rays revealed a narrowing in appellant's disc space in his neck and back due to age. Appellant also had arthritis in his spine. Appellant was seventy-seven years of age at the time. Dr. Bilfield observed that arthritis can render a person more susceptible to injury in a low or moderate impact automobile collision. Dr. Bilfield diagnosed appellant as suffering from a cervical and lumbar sprain along with aggravation of the underlying arthritis. He prescribed anti-inflammatory drugs and sent appellant for physical therapy. In follow-up visits, appellant was feeling better and reported improvement in his back and did not complain of any pain in his neck. At his third visit, appellant stated he had pain in his lower back and leg. At appellant's last visit, appellant was doing better in his neck, lower back and right hip. He was experiencing some mild neck and lower back tenderness. Dr. Bilfield's opinion was that appellant would always have some mild ongoing discomfort and difficulty. He had no doubt that the accident caused at least a strain to appellant's neck and back and led to an aggravation of the preexisting arthritis. The jury returned a verdict in favor of the defendant. Appellant filed a Civ.R. 59(A)(6) motion for new trial arguing that the verdict was against the manifest weight of the evidence. The trial court overruled the motion. Appellant has appealed from that ruling. II. Appellant's assignments of error will be addressed together as -5- they are virtually the same and appellant has failed to argue the assigned errors separately. In his assignments of error, appellant contends the trial court abused its discretion by refusing to grant appellant's motion for a new trial. Appellant argues that the evidence on the issues of proximate cause and injury was uncontroverted and established that appellant suffered an injury as a result of the accident. Civ.R. 59(A)(6) permits a trial court to order a new trial if the judgment is not sustained by the weight of the evidence. The granting of a motion for a new trial rests within the sound discretion of the trial court. That determination will not be disturbed upon appeal unless there has been an abuse of that discretion. Pena v. Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96. An abuse of discretion connotes more than an error of law or judgment; it implies an attitude on the part of the trial court which was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. The trial court's decision will be affirmed upon appeal unless it was clearly wrong and without legal basis. Dawson v. MetroHealth Ctr. (1995), 104 Ohio App.3d 654. When considering a Civ.R. 59(A)(6) motion, the trial court must weigh the evidence and pass on the credibility of the witnesses. The trial court's consideration of this weight and credibility is not in the substantially unlimited sense employed by the jury but in a more restricted sense of whether it appears to the trial court that manifest injustice has been done and that the -6- verdict is against the weight of the evidence. Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph three of the syllabus. A trial judge should abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. Bland v. Graves (1993), 85 Ohio App.3d 644. An appellate court's review of a decision of whether or not to grant a new trial does not involve an evaluation or weighing of the evidence. Only an abuse of discretion standard is to be applied. Osler v. Lorain (1986), 28 Ohio St.3d 345. A reviewing court should view the evidence favorably to the trial court's action rather than the jury's verdict. Jenkins v. Krieger (1981), 67 Ohio St.2d 314. A new trial should be granted under Civ.R. 59(A)(6) where it appears the jury awarded inadequate damages because it failed to consider an element of damages established by uncontroverted expert testimony. Dillon v. Bundy (1991), 72 Ohio App.3d 767. However, a verdict rendered in favor of the defense does not necessarily create a manifest injustice where the plaintiff does not receive any damages. See Michelson v. Kravitz (1995), 103 Ohio App.3d 301. In Reder v. Antenucci (1989), 62 Ohio App.3d 139, the plaintiff brought suit after receiving injuries in an automobile accident. Although negligence was not in dispute, the jury did not award any damages. Upon appeal, the plaintiff argued the jury's verdict was against the weight of the evidence because there was uncontroverted evidence of injury and because the defendant did not produce any expert witness to contradict the plaintiff's -7- physicians' testimony. The court observed that the jury could have found that either there was no injury or that there was no injury caused by the accident. Without injury or causation, there would be no damages for medical expenses or anything else. Even uncontroverted medical testimony is not dispositive of the case as it is only admissible to assist the jury in determining the ultimate facts of the case. The court further noted that, as there was no visible damage to the plaintiff's car, the jury had some grounds to believe the impact of the crash was inadequate to cause the claimed injury. In the instant case, appellant contends that his expert testimony was uncontroverted as it was unrebutted and must be accepted as true unless there are objectively discernable reasons upon which the jury could have relied to reject the expert's opinion. Appellant argues there was no such objectively discernable reason present. Dr. Bilfield testified that appellant's neck and back problems were new and that it was likely that a low or moderate impact automobile accident could cause a spinal strain and aggravate an existing arthritic condition. That evidence is uncontroverted does not necessarily require the trier of fact to accept an argument advanced by a party. GTE North, Inc. v. Carr (1993), 84 Ohio App.3d 776. Appellant contradicted himself on the extent of his injuries. His testimony at trial was that he had a constant ache in his back which did not seem to ease up or go away. Yet he told Dr. Bilfield his neck pain was gone and that his overall condition had significantly improved. -8- Appellant testified he could no longer drive as a result of the accident but admitted under cross-examination that he continued driving for a year following the accident and stopped after he was diagnosed with lung cancer. On direct, appellant stated that he had never been told he had arthritis in his back until he saw Dr. Bilfield. Appellant chose to discontinue the recommended treatment with a physical therapist after only a few sessions instead opting to do the exercises at home. As in Reder, there only was slight damage to appellant's car and none to the other two vehicles. The jury may have believed the impact was insufficient to cause appellant to sustain the injuries he complained of at trial. The jury returned a verdict in favor of the defense. The evidence admitted at trial supports this finding. The trial court did not abuse its discretion by overruling appellant's motion for a new trial. Appellant's first and second assignments of error lack merit. Judgment affirmed. It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. -9- It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .